England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		20th October 2006

1. MR JUSTICE SULLIVAN: This is a combined challenge by the claimant consisting of an application under Section 288 and an appeal under section 289 of the Town and Country Planning Act 1990 ("the Act"). The challenge is to three decisions contained in a decision letter of one of the first defendant's inspectors dated 8th September 2005. The appeals were concerned with a property at 20 High Street, Great Baddow in Chelmsford. The claimant owns part of the ground floor of the property. Number 20 is a Grade II listed building known as Rothmans and it is situated in the Great Baddow Conversation Area. On 18th August 1999, the property was the subject of a grant of planning permission which permitted "conversion of a disused butcher's shop and ancillary buildings to a coffee shop, selling hot snacks, and day nursery for 19 children". Pausing there, the appeals before the Inspector were concerned with that part of the building which had permission for a change of use to a coffee shop selling hot snacks and was not concerned with that part which had permission to change to a day nursery.
2. The permission was subject to a number of conditions of which three are relevant for present purposes. Condition 2:

"The development hereby permitted shall not be carried out otherwise than in complete accordance with the approved plans and specifications or as otherwise may be agreed in writing by the Local Planning Authority."

Condition 5, which is of particular importance:

"The premises shall be used for the specified purposes as a coffee shop selling hot snacks and a day nursery only and for no other purpose whether or not that other purpose is falling within the same Class of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (or in any provision equivalent to that Class in any statutory instrument revoking or re-enacting that Order)."

And condition 7:

"The coffee shop hereby permitted may only be operated between the hours of 10am and 4pm, Mondays to Saturdays and shall not be operated outside these hours."

The reasons given for those conditions were, condition 2:

"In order to achieve satisfactory development of the site."

Condition 5:

"To safeguard the appearance of the area, safeguard the amenities of neighbouring properties and in the interests of highway safety."

And condition 7:

"To ensure that there is adequate parking provision for the uses and to protect the amenities of nearby residential properties."

Condition 7 was varied by a subsequent permission on 17th December 2002 which permitted the extension of the opening hours of the coffee shop:

"The Coffee Shop may only be operated between the hours of 8am and 10.30pm Monday to Saturday and 10am and 10.30pm on Sunday."

Condition 2 added:

"This permission relates solely to the change in hours of opening for the Coffee Shop and in all other respects the development shall be carried out in accordance with the governing planning permission ... granted on 18 August 1997."

3. The claimant took a lease on the property in 2003 and began to use it as an Indian takeaway selling hot food for consumption off the premises. The new use came to the attention of the Council and, though the claimant contended that there had been no breach of planning control, it submitted a planning application on a without prejudice basis seeking to regularise the position.
4. The second defendant refused permission on 18th August 2004 and then served two enforcement notices, the first requiring the cessation of the use of the premises for the sale of hot food off the premises, and the second requiring the removal of an extraction flue. The claimant appealed against the refusal of planning permission and against the two enforcement notices and all three appeals were heard together at an informal hearing on 23rd August 2006. The Inspector dismissed all three appeals but, in response to the claimant's appeal on ground (g) in section 174 of the Act, the Inspector extended the time for compliance with the enforcement notices from 28 days to three months.
5. In his decision letter, the Inspector described the three appeals as follows: the appeal against the enforcement notice requiring the cessation of the use of the land for the sale of hot food for consumption off the premises was Appeal A, the appeal against the enforcement notice requiring the removal of the extraction flue was Appeal B and the appeal against the refusal of planning permission was Appeal C. Having dealt with a number of preliminary matters, including a description of the appeal premises in paragraphs 2 to 4, the Inspector first dealt with the appeal on ground (c) in Appeal A, namely that there had been no breach of planning control. The Inspector said this:

"5. The appellant's case on this ground is that although it is admitted that the property is used for the sale of hot food for consumption off the premises, condition 5 of the 1997 permission does not specify where the food, whatever it may be, has to be eaten. It follows that the current use is not a breach of control. Secondly, it is said for the appellant that the failure of the Council to issue an enforcement notice alleging a change of use has conceded that the permission amounted to the implementation of an A3 use. As an A3 use allows consumption of food on and off the premises, the extant permission allows the use that is the subject of this enforcement notice. Thus it is submitted for the appellant that the matters alleged already have the benefit of planning permission.

6. I accept that the permitted use falls within class A3, as does the present use. However there are distinctions to be made between operation of the current business and the use which was not only permitted but also was run in the years immediately following the 1997 permission. The condition referred to in the enforcement notice specifically limited the use to a coffee shop selling hot snacks and for no other purpose. I appreciate that the term 'hot snacks' could have been more closely defined, but the premises are no longer a coffee shop. Coffee is not offered by the appellant. It is apparent to me that in granting planning permission the Council was anxious to prevent an open ended Class A3 use from within the premises. No provision was made in the conditions for any extraction equipment so that, while the 'hot snacks' would have to be heated on the premises, it was not envisaged that any such heating or cooking would create odours or other nuisances that would affect nearby houses or flats. The menu of food that the appellant now offers includes an extensive range of full meals, much of which is deep fried often in oil or batter.

7. I appreciate that a 'snack' is hard to determine but dictionary definitions suggest that a snack is a light, quick meal eaten between main meals or that can be hastily taken. Some suggest a snack may be eaten with the fingers. I am satisfied that the food offered by the appellant fits none of those definitions and mostly consists of full meals. The nature of the food on offer produces significantly noticeable odours as a result of cooking as I found on visiting the neighbourhood. An extraction system has been installed but visually it is incompatible with the listed building. The Council's environmental health officer also suggests that the system is inefficient and that point was confirmed by the level of complaint by local residents. By inspection I was able to determine that the odours permeate the fabric of the listed building.

8. These distinctions lead me to conclude that the present use is a departure from the permission granted in 1997 and amounts to a breach of the terms of condition 5 of that permission. Although the operation falls within the same use class of the 1997 Order, I have no doubt that there has been a departure from the permitted use together with an intensification of the use made of the premises. The appeal on grounds (c) fails."

6. On behalf of the claimant, Mr Leigh submitted that this conclusion of the Inspector was legally flawed because, he submitted, the Inspector had restricted the ambit of the 1997 consent by "hypothesising" what was envisaged by the council in granting consent, despite the fact that no evidence was advanced on that topic and, indeed, the fact that such evidence would have been inadmissible because extrinsic evidence was not admissible in order to construe this planning permission, which was clear on its face. He further complained that the Inspector had relied on a dictionary definition of the word "snack" on which the claimant had had no opportunity to comment, and contended that the Inspector had been influenced by the issues of odours and the fact that there has been an "intensification" of use when the council was alleging breach of condition rather than material change of use by way of condition.
7. Finally, under this heading, he submitted that the effect of the Inspector's decision upholding the terms of the enforcement notice was such that hot food could not be sold off the premises at all and that this was too onerous because the second defendant had accepted in its submissions that if the premises was operated as a coffee shop selling hot snacks then at least some of those hot snacks could be sold for consumption off the premises. Thus it was submitted that, following the Mansi line of authorities (see Mansi v Elstree RDC [1964] 16 P&CR 153), the Inspector should have cut down the requirements of the enforcement notice.
8. In my judgment, there is no force whatsoever in any of these points. The Inspector did not "hypothesise" as to what might have been the council's motives in granting the 1997 permission. He had no need to do so because the position was perfectly clear on the face of the consent. The council was concerned that there should not be an open ended class A3 use, that is why it imposed condition 5. It is also to be noted that the Council was concerned that the work should be carried out in complete accordance with the approved plans and specifications. It appears that those plans and specifications were not before the Inspector but, since the claimants were arguing that planning permission should be granted for the extraction flue, it is inconceivable that if those plans had included provision for extraction equipment the claimant would have failed to draw that fact to the Inspector's attention. The reasons for the imposition of the conditions, namely to safeguard the amenities of neighbouring properties, are also manifest from the face of the permission itself. It is common ground that, in construing the permission, one should have regard not merely to the conditions but also to the reasons given for imposing those conditions.
9. It is fair to say that, looking at the planning permission, the conclusion that the Council was anxious to prevent an open ended A3 use within the premises is the only possible conclusion that could have been drawn. The claimant's representative at the informal hearing had advanced a possible meaning for the word snack:

"The condition does not define the term 'hot snacks'. By definition a hot snack could well be defined as a hamburger and chips or a hamburger. A snack could be defined as food either hot or cold that can be eaten without the need of cutlery or crockery."

10. Thus the claimant had put the meaning of snack in issue. It was entirely proper for the Inspector to consider what the dictionary definition of "snack" was but, in any event, this complaint is entirely beside the way. The claimant's representative focused on that part of the 1997 permission, that referred to hot snacks but seemingly failed to appreciate that the essential part of the permission was a permission for a coffee shop. It was a coffee shop that could sell hot snacks. In his submissions before me, Mr Leigh very fairly conceded that, whatever else the present use may be, it is not a use as a coffee shop. One does not need to be a lawyer, a planner or indeed a restaurant critic to be able to realise that there is a clear distinction between going to an Indian takeaway and going to a coffee shop whether or not the latter sells hot snacks. Thus the Inspector could have reached only one conclusion on the appeal on ground (c): it had to be dismissed because there was undoubtedly a breach of condition 5. Whatever definition of "snack" or "hot snack" might be adopted, the premises were not being used as a coffee shop selling hot snacks, they were being used as an Indian takeaway.
11. The Inspector's reference to intensification occurs after his conclusion which, as I say, is the only conclusion that was reasonably open to him, that there had indeed been a departure from the permitted use. He was perfectly entitled to find on the evidence that there had also been an intensification. Whether or not that intensification amounted to a material change of use was irrelevant since the Council were alleging a breach of condition 5, but since the Inspector did not suggest that the intensification amounted to a material change of use this point goes nowhere.
12. Finally under this head, the complaint that the Inspector upheld the enforcement notice which required the cessation of the use of the land for the sale of hot food for consumption off the premises. It is submitted that this requirement improperly derogates from the 1997 permission which, if the premises were being operated as a coffee shop selling hot snacks, would enable some of those hot snacks to be sold for consumption off the premises. There are a number of difficulties in the path of this ground of challenge. Firstly, as pointed out by Ms Patry Hoskins in her skeleton argument on behalf of the first defendant, this is an argument which, if it was to be advanced, should have been made by way of an appeal under paragraph (f) in section 174(2) of the Act. However, there was no appeal under ground (f) in Appeal A. There was an appeal under ground (f) in respect of Appeal B. The Inspector was required to deal with the submissions that were put before him. He was not required to cast about and see whether an appeal might have been brought under ground (f) in the Appeal A.
13. The second difficulty is this: the point would be of practical concern only if the use was to revert to that of a coffee shop and the person engaged in that use wished to sell hot snacks and was then faced with the uncertainty as to whether those hot snacks could be sold for consumption off the premises, bearing in mind the terms of the planning permission in 1997 on the one hand and the enforcement notice on the other. This point is academic so far as the claimant is concerned since there is no suggestion that the claimant intends to revert to a coffee shop use.
14. The concern expressed on behalf of the claimant is academic for a reason: the enforcement notice has to be construed as a whole. Read in isolation, and literally, paragraph 5, which says, under the heading "What you are required to do":

"Cease the use of the land for the sale of hot food for consumption off the premises."

is absolute in its terms and would prevent any sale of hot food for consumption off the premises. However, paragraph 5 should not be construed in isolation. It has to be construed in the context of the notice as a whole and, in particular, in the light of the breach of planning control which was being alleged by the second defendant. Paragraph 3 of the enforcement notice is in these terms:

"On 18th August 1997 planning permission was granted for the use of premises including the land as a coffee shop selling hot snacks and a day nursery for 19 children, subject to conditions. Condition No. 5 stated 'The premises shall be used for the specified purposes as a coffee shop selling hot snacks and a day nursery only and for no other purpose whether or not that other purpose is falling within the same class of the schedule of the Town and Country Planning (Use Classes) Order 1987 (or in any other provision equivalent to that class in any statutory instrument revoking or re-enacting that Order).

It appears to the Council that this condition is being breached in that the ground floor of the premises is now in use as the 'Banglore Village' selling hot food for consumption off the premises."

15. Thus, the complaint of the second defendant was that the premises were not being used as a coffee shop selling hot snacks. Against that background, it would be appropriate to read the requirements of the notice as requiring the cessation of the use of the land for the sale of hot food for consumption off the premises save insofar as such a use would not be in breach of condition 5 of the 1997 permission or, to put it another way, save insofar as such a use would be incidental to use as a coffee shop selling hot snacks.
16. Ms Patry Hoskins confirmed, on behalf the first defendant, that that would be a reasonable interpretation of the enforcement notice when read as a whole. This is a case where the Inspector's decision letter could also be prayed in aid if there were any proceedings taken for breach of the enforcement notice. I say that because it would be necessary to establish that the Inspector had upheld the enforcement notice in Appeal A and also to refer to the letter because he had varied the notice by substituting a period of three months instead of 28 days for compliance. If one reads the Inspector's decision letter as a whole, it is plain that there is no objection whatsoever to the premises being used as a coffee shop selling hot snacks, whether such snacks are consumed on or off the premises. Thus there is no warrant for reading the requirements in paragraph 5 of the enforcement notice in the literal way as submitted by Mr Leigh. It is implicit in both the notice itself, and in the Inspector's decision letter upholding the notice, that the notice is not intended to prevent the use permitted by condition 5 in the 1997 permission.
17. That disposes of the claimant's challenge to the Inspector's decision in respect of the ground (c) appeal against the enforcement notice in Appeal A. It is then said in respect of the Inspector's decision on the ground (a) appeal in Appeal A and his decision on the planning merits in Appeal C that the Inspector was "adversely influenced by the cooking smells". It is difficult to see why the Inspector should not have taken that matter into account. In paragraph 9, the Inspector identified the main issues as follows:

"The principal considerations in these appeals are first, the effect of the use of residential amenity in terms of traffic movements and cooking smells and, secondly the effect of the use and the visual impact of the extraction flue on the listed building and the Conservation Area."

The Inspector set out in summary what was being advanced on behalf of the claimant at the informal hearing and then responded to that case in paragraphs 11 to 13 as follows:

"11. As I have indicated above, I found on visiting the locality that cooking smells are prevalent as a result of the present use while the evidence I was given indicated that the permitted use did not have that effect. The Council's Environment Services officer gave evidence that she considers the present extraction system to be ineffective, causing a nuisance to neighbours by way of cooking odours. She advises that raising the height of the flue could make matters worse in terms of the disposal of those fumes. On visiting the site and its surroundings I also found that there are a number of residential properties in the immediate area of the site and that these are affected by the cooking smells. One problem is the regular use of cooking oil and curry powder in the preparation of meals.

12. While there is an adequate car park at the side of the appeal site, I was told that there is a tendency for customers to park briefly on the pavement when collecting pre-ordered meals and that the establishment of the hot food take-away has led to an increase in vehicle movements resulting in noise when customers call to purchase a take-away meal. Although I do not consider that traffic generated is a major concern in view of the parking arrangements, I note that the take-away operates at later hours than the previous coffee shop. There is thus a potential for disturbance and that would be inconsistent with the aims of Local Plan policies EMP1 and ENV1.

13. I am also concerned that little has been done to preserve the listed building and its features of architectural and historic interest. As well as the galvanised metal extract flue, the glazed area beside the shop front is now used merely as a store and the blinds do not wholly mask the unsightly effect of this arrangement. Internally alterations have been made to the 17th and 18th century panelling mentioned in the list description. The combined effect of all these matters leads me to conclude that I should not grant planning permission for continuation of the present use on the deemed application under section 177(5). For all these reasons the appeal on ground (a) fails."

18. As I understand the criticisms of what would appear to be eminently reasonable conclusions open to the Inspector on the planning merits, it is said that the Inspector failed to consider the effect of the difference between what smells might be generated by a lawful use of the premises and the smells produced by the current use. It is plain that the Inspector did have regard to the previous experience of the permitted use. He said in terms:

"... I found on visiting the locality that cooking smells are prevalent as a result of the present use while the evidence I was given indicated that the permitted use did not have that effect."

The Inspector was not required to engage in a hypothetical exercise in order to consider what cooking smells might be generated by a coffee shop selling hot snacks. As I have said, the 1997 permission did not, on the information available to the Inspector include any provision for extraction equipment that might have affected the external appearance of the building and so required planning permission. Against this background, it is difficult so see what useful purpose would have been served by the Inspector engaging in such a hypothetical exercise.

19. Turning to the issue of traffic, the criticism were is that the Inspector failed to have regard to the fact that there had been an extension of the permitted hours for operation of the coffee shop and if he was concerned about operation longer than those hours, that problem could have been dealt with by way of the imposition of a condition. The short answer to this point is that there was information before the Inspector that the present use operated until 11.00pm on Sundays and 11.30pm on Mondays to Saturdays. Thus he was entirely correct to note that "the take-away operates at later hours than the previous coffee shop" (see condition 7, as amended). Equally, it is difficult to understand why he could not reasonably conclude that there was "a tendency for customers to park briefly on the pavement when collecting pre-ordered meals and that the establishment of a hot food take-away has led to an increase in vehicle movements resulting in noise when customers call to purchase a take-away meal". While the Inspector was of the view that the traffic generation was not a major concern, he was entitled to take the view that if the premises was operated as a takeaway, then there would be the potential for disturbance.
20. Turning to the question of the appearance of the listed building, initially the complaint made by Mr Leigh was that the Inspector had simply looked at the effect of the proposals on the appearance of the listed building itself and had not considered the impact on the wider conservation area. There is no force whatsoever in that criticism. It is plain that the Inspector considered that the matters he referred to in paragraph 13 were harmful to the listed building itself. It would follow that there would also be harm to the conservation area. It might have been necessary to consider the conservation area separately if he had concluded that no harm had been done to the listed building within the conservation area. In any event, it is plain that the Inspector did have regard to the impact of the present use on the conservation area. He said in paragraph 20 of his conclusions:

"Rothmans is an attractive listed building at the heart of Great Baddow. I consider that the listed building should be preserved and that any alterations to its frontage to the main road should be treated sensitively. The scheme that was granted permission and listed building consent in 1997 achieved the delicate balance between a historic building and modern commercial use. The present use of the site fails to achieve that aim and has other unsatisfactory effects on the local community in the Conservation Area and beyond. For the reasons given above, and having regard to all other matters addressed to me, I have come to the conclusion that these appeals fail and that the enforcement notices should be upheld. In reaching my decision I have taken account of everything brought to my attention at the hearing and in writing and I have found nothing that outweighs the main planning issues of this case."

21. Mr Leigh complained that, while the council had undoubtedly raised the impact of the galvanised metal extract flue upon the listed building, it had not complained about the other matters referred to by the Inspector in paragraph 13 of the decision letter, namely the fact that the glazed area beside the shop front was simply being used as a store and the blinds did not mask the unsightly effect of that arrangement, and that there had been unfortunate internal alterations to the 17th and 18th century panelling. Paragraph 20 of the decision letter states that the Inspector had regard to all of the written representations. In those written representations third parties were complaining not simply about the flue but about the impact of the use on the appearance of the building. While it is true that they were concerned about other matters, colours of blinds et cetera, the Inspector was perfectly entitled to have regard to the matters referred to in paragraph 13 in the light of those representations and his site inspection. In any event, the complaint that the Inspector did not give the claimant a fair crack of the whip in respect of these matters is entirely lacking in substance because it is plain, when one turns to Appeal C, that even considering the flue alone the Inspector was satisfied that it was harmful to the listed building.
22. Having set out the appellant's arguments in paragraph 16, the Inspector said this in paragraph 17:

"17. I do not accept the appellant's arguments on this ground. It is clear that the permission granted in 1997 did not envisage the preparation of food that would require specialist equipment to dispose of cooking smells. Although the appellant speaks of an alternative extraction system, no such scheme was produced for my consideration. The Council's Environmental Health officer indicated that it was unlikely that an efficient scheme could be produced given the parameters in which it would have to operate. For my part the present scheme is harmful to the listed building and it appears likely that any scheme that would satisfactorily dispose of cooking smells would be higher than the present equipment with further visual damage to the listed building and the Conservation Area. The appeal on ground (a) fails."

23. Mr Leigh submitted that the Inspector had not considered whether any concerns about the flue could be dealt with by way of condition but it is plain that the Inspector did consider and rejected that possibility. As he said in paragraphs 18 and 19:

"The appellant considers that the requirements are excessive since an extraction flue is a necessary part of the 1997 permission. A requirement to produce and implement a scheme which would reduce the impact of the existing flue would be more appropriate and would allow the permitted use to continue without detriment to the area.

19. As indicated above I do not consider that there are any alterations or lesser steps that would make the flue acceptable given its prominence and obtrusiveness. In the absence of any specific proposals by the appellant the appeal on ground (f) must fail."

Thus, there was no prospect of a condition being able to resolve the fundamental difficulty presented by the flue.

24. For all of these reasons, I am satisfied that there is no force whatsoever in any of the criticisms of the Inspector's decision letter. His view is one which was open to him on the planning merits and it could not be described as in any way unreasonable. The short answer to the claimant's case is that, whilst it might be difficult to define a coffee shop in the abstract, any sensible person seeking refreshment can recognise the difference between a coffee shop and an Indian takeaway. It follows, that the application and the appeal must both be dismissed.
25. MS PATRY HOSKINS: My Lord, I do have an application for costs. I understand that the costs figure is agreed between the parties and I am assuming that Mr Leigh does not resist them in principle either.
26. MR JUSTICE SULLIVAN: Well, just give me the figure rather than hand me up the schedule, if Mr Leigh does not -- you do not object in principle?
27. MS LEIGH: No, I have come away with something and I have been pondering whether I get any discount for coming away with something but it seems to me that would be an argument I am not going to win.
28. MR JUSTICE SULLIVAN: I think you would be pushing your luck. I think that is very sensible, discretion being the better part of valour.
29. MS LEIGH: Exactly, and the sum is agreed.
30. MR JUSTICE SULLIVAN: What is the sum, please, Ms Patry Hoskins?
31. MS PATRY HOSKINS: The sum is £5,912.
32. MR JUSTICE SULLIVAN: Thank you.
33. Right, the application under section 288 and the appeal under section 289 of the Act are both dismissed. The claimant is to pay the first respondent's costs, summarily assessed in the agreed sum of £5,912.
34. Any more for any more?
35. MS LEIGH: There is the question of timing. I do not know if that is a matter for your Lordship or whether it be dealt with outside of this court room. It is the length of time necessary to pay the sum.
36. MR JUSTICE SULLIVAN: I thought the CPR -- there is a period -- is it 14 days?
37. MS LEIGH: Exactly.
38. MR JUSTICE SULLIVAN: Do you want something -- because if you want --
39. MS LEIGH: A longer period. Yes, I was trying to get some instructions.
40. MR JUSTICE SULLIVAN: The Treasury Solicitor likes to get his money quickly but I should not think he would mind a month or something like that if there was a difficulty.
41. MS PATRY HOSKINS: I am being told that an arrangement can be entered into, a sort of instalment arrangement or something like that, so I am sure we can discuss that further outside court.
42. MR JUSTICE SULLIVAN: I would have thought discuss that further. It seems to me the CPR -- the normal provision should apply unless there is some very good reason not to do so. If you have a very good reason and, for whatever reason, the Treasury Solicitor does not accept that, then you obviously would want the opportunity to come back but I think otherwise the normal order should apply.
43. MS LEIGH: Thank you very much, my Lord.